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Reviews | The Supreme Court was right to rely on history in abortion and gun decisions


William Baude is a law professor at the University of Chicago.

The seismic mandate of the Supreme Court was notable not only for the decisions it made, but also for the way it made them: by making heavy use of history. This may seem like the wrong development – ​​rolling back societal progress and calling on judges to make law firm history. But it’s not. The question going forward is not whether the court should use history, but how.

The court finds itself using history for both legal and practical reasons. History is intimately linked to law. Our Constitution and our laws have been enacted in the past and amended in the past, and so understanding their contents is an inherently historical undertaking. History, practiced correctly, can also provide objectivity, giving judges a basis to decide beyond their personal opinions and the controversies of the day.

These uses of history, ironically, provide support for powerful legal change. If the court wants to overturn nearly 50 years of case law, as it did in Dobbs v. Jackson Women’s Health Organizationit points to something even older and more deeply rooted than Roe vs. Wade itself — the history and tradition surrounding the Constitution. Likewise, if the court is to question the gun control legislation of modern jurisdictions, as it has done in New York State Rifles and Pistols Association vs. Bruenit does so by referring to the text and history of the Constitution.

The use of constitutional history has been challenged as inherently regressive. Why should today’s public policy decisions have anything to do with times past when women or people of color were excluded from power? This argument misses the point. In cases like Dobbs, the court seeks to free the government from constitutional restraint, arguing that today’s governing majorities have the right to make their own choices on abortion policy, no matter what dead white men in wigs have could think. In cases like Brown, the court relied on historical arguments that the right to own and bear arms was especially vital for newly liberated African Americans following the Civil War. And in other cases, the court has used the story to assert the rights of defendants and other unpopular groups.

Another criticism is that judges cannot do history well and their judgments will inevitably be results-oriented. Judges went to law school, not graduate history programs, and only a few of their court officers have such training. Historians frequently condemn the court’s historical assertions as oversimplified, overconfident, and twisted to achieve the desired result. This too misses the point. What the Supreme Court ultimately decides is the law, not history for its own sake. He turns to the historical record to better understand the text he is responsible for interpreting, and uses legal procedures to do so – a traditional performance of the profession of judging.

The fact that the court does law, not just history, also addresses accusations that the court is inconsistent in the historical periods it emphasizes. The ultimate question is what our most fundamental right provides, which is to focus first on the periods when the Constitution was written and amended, and only secondarily on subsequent interpretations. The court is not trying to provide a broader history of our society’s attitudes toward guns, sex, or anything else. In fact, that is not his role.

The real question is not whether the court should use history, but whether legally relevant pieces of history are missing. There is cause for concern about this in both Dobbs and Brown. In Dobbs, the court makes it difficult to recognize rights that are not explicitly enumerated in the Constitution. But another clause of the Constitution, which the court relegates to a footnote, protects the “privileges or immunities of citizens of the United States” from state abridgement. History suggests that these privileges or immunities include unenumerated rights of citizens, perhaps even rights that are recognized over time. If that is the case, DobbsThe analysis of is incomplete.

During this time at Brown, the court refused to allow any form of “balancing of interests” between gun rights and public safety. But deeper historical research can support such a balance after all. At the Foundation and during Reconstruction, many constitutional rights were subject to regulation in the name of the public good. Such arguments could support greater regulation of Second Amendment rights than the court suggests.

These historical problems do not necessarily mean that Dobbs Where Brown achieves the wrong result. But they could make a big difference to the scope of those decisions in the decades to come.

This brings us to the larger lesson. In recent years, many of the court’s critics — including some dissenting justices — have ceded the initiative. They tried to shield themselves behind precedents or pierce majority arguments without advancing a competing constitutional theory.

This is true even of recent dissidences which have engaged superficially on historical bases. That won’t be enough. The court’s increasing reliance on history creates an opportunity for these critics to provide their own rigorous account of our constitutional law and tradition. To seize this opportunity, they will have to make the most of the story, not try to escape it.